STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVISION OF HOTELS AND )

RESTAURANTS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1232

) EMERALD PLAZA WEST, INC., d/b/a ) MIAMI GARDEN WEST APARTMENTS, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Miami, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton II, on September 4, 1981. The Division of Administrative Hearings received a transcript of proceedings on December 23, 1981. The parties were represented by counsel:

APPEARANCES

For Petitioner: Janice G. Scott, Esquire

725 South Bronough Street Tallahassee, Florida 32301

For Respondent: Tomas F. Gamba, Esquire

779 Brickell Plaza, Suite 706

Miami, Florida 33131

By notice to show cause, petitioner alleged that, on June 9, 1989, the respondent "was in violation of Florida Statute 509 and/or the rules of the Division of Hotels and Restaurants in the following particulars: .-

1. 7c-1.04 (1)--Failure to provide

   fire extinguishers for building & traveling distance must not exceed 75 ft. apart.

2. 7c-1.04 (5)--Failure to repair refrigerator in apt #2 in 2250 building.

3. 7c-1.03 (1)--Failure to keep building in good repair:

   1. Repair roof in bldg. 2250 roof holding water.

   2. Repair leak in apt #2 ceiling.

   3. Seal holes on pump room and repair or replace doors to pump [r]oom

   4. Repair leak in laundry room and seal holes.

   5. Seal holes in meter room 18255.

   6. Repair drop ceiling in apt #4 Bldg. 18257 and base board in living room.

4. 7c-2.02 (1)--Failure to repair out- side toilets.

5. 7c-1.03 (3)--Failure to replace screens in apt #2 east at 18257

   1. 18257 #3 kitchen and east side.

   2. apt #1 east and rear. Apt #2 west.

   3. 18251 #2,3 front and north side.

   4. Building 18255 front and rear.

6. 7c-1.03 (3) --Failure to exterminate premise of roaches and vermins. Roaches are present and vermin dropping."

The parties stipulated that Emerald Plaza West, Inc., is licensed by petitioner to do business as Miami Garden West Apartments.

FINDINGS OF FACT

1. Respondent Emerald Plaza West, Inc., holds license No. 23-12623-H, issued by petitioner. Miami Garden West Apartments consists of 31 or 38 (T.

   79) apartments in several buildings located on Northwest 183rd Street in Miami, Florida. E.J. Catogas, president of Emerald Plaza West, Inc., was also president of the general contracting firm that built the complex in 1973. Two years or so before the hearing, Emerald Plaza West, Inc., became the owner of Miami Garden West Apartments as a result of a foreclosure action. By the time of the hearing, the apartments had been sold and belonged to Nicky Limited, but respondent Emerald Plaza West, Inc., continued to manage the property under contract to the new owner.

   
   

2. On April 11, 1980, Rogers Brown, an investigator in petitioner's employ, visited Miami Garden West Apartments. He found less fire extinguishers than the required two per building, and, of the fire extinguishers he found, some were in need of recharging. He discovered a refrigerator in need of repair in apartment No. 2 at 2250 Northwest 183rd Street, two toilets near the swimming pool in need of repair, and several screens in need of replacement, namely, screens on the east and west sides of apartment No. 2 in building 18257; on the east side of apartment No. 3 and in the kitchen of the same apartment', and on the east and rear sides of apartment No. 1 in building No. 18257; front and rear screens were missing in building 18255, and on the front and north sides of apartments Nos. 2 and 3 of building 18251. The inspector also found roaches and rodents on the premises.

   
   

3. An employee of respondent lives two blocks from the apartment complex and helps with the repairs but is unable to speak English. Since he was unwilling to sign Inspector Brown's inspection report, Mr. Brown caused the report to be mailed to respondent, certified mail. Mr. Catogas refused the letter, however. Rogers Brown personally furnished E.J. Catogas copies of inspection reports on November 19, 1980. 1/ On May 15, 1980, personal service of the report had been effected on the wife of the employee who lived nearby.

   
   

4. When Rogers Brown again inspected Miami Garden West Apartments, on June 9, 1980, he found some buildings still lacking fire extinguishers altogether, and found no fire extinguisher that was not out of date. There were only three or four fire extinguishers in the entire complex, and each needed recharging. Without contradiction, Mr. Catogas testified that the fire extinguishers are

   sometimes stolen. According to the same witness, the apartments are located in a fairly nice neighborhood and all the fire extinguishers were in place and operable on September 3, 1981. Petitioner's Mr. Brown found all the fire extinguishers in good order when he inspected on April 29, 1981. He had advised respondent that some of the fire extinguishers were in need of recharging on February 19, 1981.

   
   

5. When Mr. Brown inspected on June 9, 1980, the roof on the southeast side of apartment No. 2 in the building at 2250 183rd Street leaked. Water was also leaking through a windowsill, and the refrigerator was not working in that apartment. At the time, apartment No. 2 at 2250 Northwest 183rd Street was occupied by Fannie Lindsey, whose maiden name was Fannie Hogan. During one period, her toilets overflowed, two to three times a week, for a reason she did not understand. Ms. Lindsey brought a lawsuit against respondent seeking changes in the conditions in her apartment. On December 26, 1980, Mr. Catogas or his lawyer wrote Ms. Lindsey's lawyer that the repairs sought had been effected. At the time of the hearing, the roof had been repaired, but the refrigerator still did not work. Mr. Catogas explained that he had adopted a policy, on advice of counsel, of effecting emergency repairs only in the Lindsey apartment.

   
   

6. The door was off the pump room for the swimming pool and the laundry room also lacked a door, on June 9, 1980. There was a wet spot in the ceiling of the laundry room and holes in the sheet-rock lining the walls. One of the plates in the drop ceiling in apartment No. 4, building No. 18257, was broken, and the baseboard required repair. The outside toilets near the pool were inoperable. The plumbing has since been repaired, but residents do not have access to these toilets because the doors have been locked since the repairs were effected.

   
   

7. No screens were to be found on the east side of apartment No. 2 at building No. 18257, on the east and rear sides of apartment No. 1 in the same building, and at the kitchen window and on the east side of apartment No. 3, also in building No. 18257. The front and north screens were missing at apartments Nos. 2 and 3 in building 18251 and front and rear screens were missing in building No. 18255.

   
   

8. There were roaches and rat droppings in some of the apartments Inspector Brown visited on June 9, 1980. At some point, an employee of respondent began exterminating pests at the complex. Chemicals (some diazo compound) and equipment are kept on the grounds. Rogers Brown returned to Miami Garden West Apartments on August 16, 1980, on February 19, 1981, and on February 23, 1981. On his most recent visit, he once again found roaches and evidence of rodents; missing screens on the front and rear of building No. 18255; and that the drop ceiling in apartment No. 4, building No. 18257 remained unrepaired. According to Mr. Catogas, this has since been fixed. Mr. Brown also noted the still unmet need for repair to the baseboard in the living room of apartment No.

   4 in building No. 18257.

   
   

9. Respondent makes repairs from time to time and regularly exterminates the premises.

   
   

10. Petitioner filed a proposed order which has been considered in the drafting of the foregoing findings of fact and substantially adopted, in substance. Proposed findings that have not been adopted have been rejected as inconsistent with or unsupported by the evidence or as irrelevant to the controversy.

    CONCLUSIONS OF LAW

    
    

11. Petitioner is authorized to "suspend or revoke the license of any public lodging establishment . . . that has operated . . . in violation of any of the provisions of . . . chapter [509] or the rules of the division." Section 509.261(1), Florida Statutes (1981). "In lieu of the suspension or revocation of licenses [petitioner] may impose fines . . . [not to] exceed

    $500 for each offense." Section 509.261(2), Florida Statutes (1981).

    
    

12. The rules of the division which petitioner has here alleged that respondent violated provide:

7C-1.03(1) Roofs, walls, ceilings, floors, stairs, steps, windows, transoms, shelves, fixtures, etc., shall be kept in good repair, clean and painted where applicable.

(3) Insects, vermin, rodents, termites, etc., shall be kept exterminated.

7C-1. 04(1) Fire Extinguishers (required for Class A fires--ordinary combustibles)-- There shall be one of the following types of fire extinguishers for each 3000 square feet or less of floor space on each floor and the maximum travel distance to the nearest fire extinguisher shall not exceed

75 feet:

1. 2 1/2 gallon soda acid fire extin- guisher

2. 2 1/2 gallon pressurized water fire extinguisher

3. 2 1/2 gallon pressurized antifreeze fire extinguisher

4. 2 1/2 gallon cartridge operated water fire extinguisher

5. 2 1/2 gallon cartridge operated antifreeze fire extinguisher

6. 2 1/2 gallon foam fire extinguisher

7. 4 lb. to 10 lb. ABC fire extin- guisher (with minimum rating of 2A-10BC)

Note: Two of any of the above sizes of ABC extinguishers with 1A-10BC rating, may be used in place of one ABC with 2A-10BC rating.

Fire extinguishers (required for Class B--Flammable Liquids--grease, oil, etc. and Class C fires--Electrical)--In addition to the above (except when ABC extinguishers are used) there shall be a minimum of one 5 lb. dry chemical fire extinguisher on each floor

for each 100 feet of travel distance or less. Extinguisher must be placed so the minimum travel distance to the nearest 5 lb. dry chemical extinguisher is not over 50 feet.

All establishments that either serve and/or prepare food, must have a minimum of

one of the following fire extinguishers accessible in the cooking area:

Fire Extinguishers for Class B and C Fires:

1 5 lb. dry chemical fire extinguisher with minimum rating of 8 BC

1 10 lb. CO2 fire extinguisher with minimum rating of 8 BC

1. 4 lb to 10 lb. ABC fire extinguisher with minimum rating of 8 BC

2. 5 lb. CO2 fire extinguishers with minimum rating of 4 BC on each extinguisher

Since the ratings on all Class B and C extinguishers were changed as of June 1, 1969, by Underwriters Laboratories, the fol- lowing will be required in all new cooking areas:

1 5 lb dry chemical fire extinguisher with a minimum rating of 10 BC

1 15 lb. CO fire extinguisher with minimum rating of 10 BC

1 4 lb to 10 lb. ABC fire extinguisher with a minimum rating of 10 BC

In the event it is determined by the Direc- tor that it is impossible for a lodging establishment to maintain fire extinguishers in a public hallway or near the head of the stairs without repeated replacement because of vandalism and theft, thereby resulting

in an undue burden of expense and hardship on the operator of the establishment, then pursuant to an order of the Director, the establishment [sic] shall maintain one ABC extinguisher of at least 2.75 lb. with a minimum rating of 1A-10BC in each apartment or room.

Fire Extinguisher Installation:

Extinguishers having a gross weight not exceeding 40 pounds shall be installed so that the top of the extinguisher is not more

than five feet above the floor. Extinguishers having a gross weight greater than 40 pounds (except wheeled types) shall be so installed that the top of the extinguisher is not more than 3-1/2 feet above the floor. All extin- guishers shall be accessible to all tenants

at all times.

Fire Extinguisher Servicing:

The following types of extinguishers must be recharged once every year or when used:

Soda acid extinguishers Foam extinguishers

Cartridge operated water extinguishers (weigh cartridge, check for internal corro- sion, change water, clean all parts)

Cartridge operated [sic] antifreeze extinguisher (check antifreeze, clean all

parts) The following types of extinguishers must be subject to a complete maintenance inspec- tion of every six (6) months or recharged

when necessary:

Pressurized water extinguishers Pressurized antifreeze extinguishers Pressurized dry chemical type extin-

guishers

Carbon dioxide extinguishers

Cartridge dry chemical extinguishers A standard State approved service tag must

be attached to each extinguisher and a per- son holding a valid State permit issued by the State Fire Marshal shall recharge or inspect the extinguisher and shall prepare the tag to include the information required by rule 5A-2I.4I of the State Fire Marshal's rules.

Fire Hose Maintenance:

Inspections should be made every six

(6) months to assure that the hose is in proper position on the racks and that all of the equipment is in place and in good condition. The hose should be removed and re-racked at least annually and new gaskets

installed in the couplings, both-at the hose valves and at the nozzles if necessary.

Where couplings are polished, care should be taken to see that polish used does not touch fabric of hose.

(5) Heating and ventilation--The heat- ing and ventilation system shall be kept in good repair or be installed to maintain min- imum of 680F. temperature throughout the building; except that same shall not apply to the land areas lying south of latitude

26 degrees, 20 minutes North (260 20' N). Fireproof shields must be used around and under stoves and boiler room must be enclosed with fireproof walls, fireproof ceiling and metal covered doors. The insurance inspec- tor's boiler report is required annually and shall be posted in the boiler room.

7C-2.02(1) Hotels and Motels.

1. Public Toilets. Where there are one or more public dining rooms or cafes, there shall be provided at least one water closet and one lavatory for each sex, for public use and where these water closets and lavatories are not accessible to the kitchen employees, additional water closet

   or closets, and lavatory or lavatories shall be provided for such employees. One free public toilet for each sex.

   Where approved by the Director, Provi- sions may be made by which the same toilets may be used in connection with lobbies and public dining rooms or cafes.

2. Guest bathrooms. In every hotel, on each floor where sleeping accommodations are provided, there shall be at least one water closet for each sex and there shall be also one lavatory and one bathtub or shower for every fifteen (15) guests, or major fraction of that number rooming on that floor not provided with private or connecting bathrooms, provided, however, that where approved by the supervising architect, provisions may be made for use by guests of public water closet or closets

   maintained in connection with a public lobby or public lobbies where such water closet

   or closets are easily accessible to such guests.

   Where sleeping accommodations are pro- vided for more than fifteen (15) persons on any floor, additional water closets, lava- tories, and baths or showers shall be pro- vided for each such fifteen (15) additional persons or major fraction of that number.

   Where every sleeping accommodation has unrestricted access to or use of private connecting toilet and bathroom or rooms on any floor no other bath or toilet shall be required in connection with such sleeping accommodations.

   Each private or connecting bath shall contain one water closet and one bath or shower and one lavatory, provided, however, that if a lavatory is provided for each sleeping accommodation outside of the bath- room, the lavatory may be omitted in the bathroom.

3. Service sink. A service sink shall be provided on each floor.

4. Water supply. All fixtures, except water closets shall have both hot and cold water.

Rule 7C-2.02(1), Florida Administrative Code, applies to hotels and motels but was not shown to be a proper basis for disciplinary action against respondent for failure to keep the toilet facilities in the pool area in good repair.

There is no occasion to decide whether that failure and the subsequent barring of the toilets violate other provisions of law not pleaded here.

The evidence established every other violation pleaded by petitioner. While unfortunate, the poor relationship between Mr. Catogas and one of his tenants in no way alters respondent's legal responsibilities to keep the licensed premises in good order. The furnishing of fire extinguishers and effecting of various repairs after the need was officially brought to Mr.

Catogas' attention have been considered in mitigation. On the other hand, the

law requires the doing of these things without official prodding, and Mr. Catogas could have been formally apprised of these deficiencies considerably earlier if he had been more receptive.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner assess a civil penalty against respondent in the amount of

$2,500.

DONE AND ENTERED this 14th day of January, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1982.

ENDNOTE

1/ Mr. Brown . . . came to the building and met [Catogas] and said that he found certain violations. He served [Catogas] with some forms and gave them to [Catogas] and said 'You have to sign here.' Catogas answered 'I don't, I don't have to sign anything, I am seeing the violations, but I don't have to sign anything.'" (T. 80.)

COPIES FURNISHED:

Janice G. Scott, Esquire Department of Business

Regulation

725 South Bronough Street Tallahassee, Florida 32301

Tomas F. Gamba, Esquire

779 Brickell Plaza, Suite 706

Miami, Florida 33131

Gary R. Rutledge, Secretary Sherman S. Winn, Director Department of Business Division of Hotels and

Regulation Restaurants

725 South Bronough Street 725 South Bronough Street Tallahassee, Florida 32301 Tallahassee, Florida 32301

Docket for Case No: 81-001232

Orders for Case No: 81-001232